Domestic & Foreign Asset Protection Solutions

In my last blog post I described the emotional and practical reasons why there is so much probate litigation and how to hire an experienced probate litigator; in this post I’ll mention some common contested probate allegations and measures that can be taken to avoid them or to keep them from spiraling out of control.

The Will is invalid because the testator was incompetent. Competency is a complicated issue. My friend Jay Polk has written a treatise that is more than 100 pages long describing the different tests for competency in different probate settings. For a will to be valid, the maker of the Will called the “testator” must meet 3 tests:

The ability to know the nature and extent of his property;

The ability to know his relation to the persons who are the natural objects of his bounty and whose interests are affected by the terms of the instrument; and

The ability to understand the nature of the testamentary act.

This is fertile ground for disputes and must be determined on a case by case basis which is what makes such contests expensive. Often a forensic geriatric psychologist testifies after reviewing the medical records, and treating physicians may be called to testify with varying degrees of success depending on the nature of their specialty and the degree of contact. Lay witnesses and the nature of the Will itself may be important elements of proving a testator’s competence. In the end it is a facts-and-circumstances decision for which very little assurance can be given at the beginning of the case; even in some of the more outrageous cases.

Undue influence was exerted on the testator. The second most popular reason for litigation is an allegation that someone exerted undue influence on the testator so that the Will does not represent the testator’s true intentions. Any time property is not left strictly to bloodline descendants in equal shares, this issue may arise. Expensive battles ensue over whom Mom loved best or who took care of Mom. Just about any fact pattern can support a good faith belief of undue influence, but changes to an estate plan on a death bed or after entry into a care facility are particularly fertile fields for such claims.

The original Will cannot be found. This is not often asserted in Arizona because a copy of the Will can be admitted to probate if certain conditions proving its authenticity exist. But it can lead to a full contested matter as to whether those conditions exist.

The Personal Representative is not fairly liquidating or distributing the assets of the testator. An increasingly common concern is that the person selected to administer and distribute the estate does not do so either in a timely or equitable manner. Unlike the issues described above, this is an issue that arises only after the probate has been opened and the administration has not proceeded the way a distributee expected or desired. Although efforts to remove the Personal Representative are common, those actions seldom end well for anybody and it is more common to get a court order compelling the Personal Representative to complete the work.

All of these issues could be avoided or minimized if the testator began early enough to make and update a plan, and kept all the distributees informed along the way. Because disaffected relations are so common, the best prevention is to have a clear Will or trust that leaves little room for dispute, and name a Personal Representative whose loyalty and understanding of the complex family relationships is unquestioned.

Even in the best of circumstances, probate contests are inevitable and the best results are often obtained when the parties are reasonable, think about the result before engaging, and pursue a course that is likely in the end to be the most palatable to all litigants. Otherwise, a full blown Will contest will be expensive and protracted.

This entry was posted on Wednesday, November 25th, 2009 at 2:52 pm and is filed under Estate Planning, Probate.

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It has truly been my pleasure to work with Mark Bregman, Lisa Godfrey, Christina DuBois over many years. They are professional, responsive, and approachable. Their website is an excellent source of information.

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Viewing this website does not create an attorney/client relationship. The material contained herein is general legal information and not advice. You should consult an attorney admitted in your jurisdiction regarding your specific legal matter. The lawyers in this firm are admitted to practice law only in Arizona.